Fenner v. Lewis

Husband and eies of^agree-Muted to°iJvé separate, and C executed the agreement suretySfor the ' veMntcd To r to .the certain sum of deUvmng'to the wife, for her separate use, a coachee and horses, &c. In an aet:on of covenant brought by the husband against C. to recover the money, it was held that evidence of the declarations and confessions of the wife, as to the delivery of the coachee and . horses, was admissible. It seems, that where a husband permits his wife to act in any particular business, he is bound by her acts and admissions, which may be given in evidence against him. Where a party asks a witness as to what another person confessed, the whole'of the confession ov declaration, as stated by the witness, is evidence, and must be taken together»

THIS was an action of covenant. The cause was tried at the Nem-York sittings, in Jimc, 1812, before the Chief Justice. The cause came' up on a bill of exceptions, taken at the trial, The facts contained in the bill of exceptions, which are material * 7 to be stated, were as follows: Tjhe plaintiff gave in evidence articles of agreement, made the 22d of November, 1806, between *;'ie °f d"18 first part, Dorothy, the wife of the plaintiff, of the second part, and the defendant, of the third part; reciting, that whereas the plaintiff,. and Dorothy, his wife, had agreed t° live separate, and'the defendant had agreed to be bound for performance of the terms on the part of the said Dorothy, * i ,, &c. The plaintiff covenanted with the defendant to permit the x A said Dorothy to live separate and apart from him, &c. And in consideration .of the premises, the defendant covenanted, on the part of the wife, to pay the plaintiff “ 3,800 dollars, the plaintiff delivering to the said Dorothy, for her separate use, the coachee and horses which he has lately purchasedand further, that the said Dorothy shall suffer the plaintiff to live separate from her, &c. and for the punctual performance of the agreement, the plaintiff and defendant bound themselves to each other, in the penal sum of 25,000 dollars. The plaintiff offered Robert Jackson, as a witness, to prove certain declarations and confessions of Dorothy, the wife of the plaintiff, relative to her acceptance of the coachee and horses, and which declarations rvere made in the presence of the defendant. The evidence was objected to by the defendant’s counsel, and the objection was overruled by the judge;' and his opinion excepted to by the defendant’s counsel. The witness being admitted, testified, that he had let a stable to the plaintiff, before the separation of the plaintiff and his wife, in which the coachee and horses were kept. After the separation, in the fall of 1806, the plaintiff removed to jPoughkeepsie, and the witness called on the wife for the rent of the stable, and she told the witness that she had the coachee in the stable and used it, but not the horses; that she had sent them to the plaintiff at Poughkeepsie, to be kept during the winter. The witness requested her to give up the stable, but she refused, saying she should want it for the horses in the spring. She afterwards took away the coachee. The defendant produced as a witness, a coachman who lived with the plaintiff, who testified, that he took the horses to Poughkeepsie, by order of the plaintiff? in the autumn of 1806; and that early in the next spring, he brought the horses to New-York, by direction of the plaintiff^ who sold them; and that the witness was never spoken to by Mrs. Fenner relative to the horses. John Robertson, witness for the' defendant, testified, that he saw the horses in the spring of 1807, in New-York ; and being questioned by the defendant, whether the plaintiff had not acknowledged that he wanted to sell them, the witness answered, that the plaintiff told him “ that he wanted to sell the horses, for he had offered them to Mrs. Fenner, and she would not receive them, and he must do something with them.” The defendant’s counsel objected to any evidence of the declarations of the plaintiff, in the absence of the defendant; but the Chief Justice ruled that the evidence was admissible, as coming from the defendant’s own witness, on his direct examination, and being part of the conversation about which the defendant inquired. To this opinion the defendant^ counsel excepted., The defendant then offered a witness to prove the declarations of the defendant, at different times, in the winter of 1806, but the evidence was objected to by the plaintiff’s counsel, and overruled by the Chief Justice. , The plaintiff produced two other witnesses to prove the acknowledgments of Mrs. Fenner, in presence of the plaintiff, one of whom testified, that being present at the house of Mrs. Fenner, in the spring of 1807, the plaintiff came there and told her he had brought down the horses in good order; and she said it was no time to talk about them. This evidence was objected to but admitted, and an exceptiop taken. The Chief Justice charged the jury, that the delivery of the coachee to Mrs. Fenner was admitted, and that thé testimony given by three witnesses of the admission of Mrs. Fenner, that she had sent the horses to Poughkeepsie, was sufficient evidence of the fact of her having received the horses in the fall of 1806, after the separation; and that the defendant having covenanted to pay the plaintiff 3,800 dollars, on his delivering the coachee and horses to his wife, the plaintiff was entitled to recover, and the jury accordingly found a verdict for the plaintiff.